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ANALYSIS OF NOVEMBER 9, 2017 SUPREME COURT OPINION

(Posted November 9, 2017) This morning, the Supreme Court of Virginia hands down one opinion, Chilton-Belloni v. Angle. It’s a land-use appeal, but the primary issue is the application of res judicata. It contains a ruling that may come as a surprise to you.

Chilton-Belloni owns a home in Staunton; today’s opinion describes it as a historic home on a now-busy street. In 2006, she and her husband wanted to build a wall to provide them with a measure of privacy and soundproofing. A City inspector visited, reviewed the scene and the plans, and told them, “You’re good to go.”

The landowners started construction. The next year, when they were almost done, the Zoning Administrator came by and told them to stop; the inspector the previous year had been mistaken. Since the wall violated Staunton’s ordinances, he presumably instructed them to take it down.

For those of you who don’t handle land-use law – and I presume that that’s a healthy majority of you – your first inclination is to raise an objection of fundamental unfairness. The City told the owners they were okay to build, and they acted in reliance on that information. Here in the hallowed halls of the law, we’d call that estoppel: The City cannot change its position after the owners show detrimental reliance.

Except the City can, in fact, change its position. There’s a long line of authority holding that the doctrines of estoppel and waiver don’t apply to governments when they act in their governmental capacity. Stated another way, a government official can’t bind the government by his words or deeds. If it were otherwise, each government employee would be able to overturn the law in specific instances. Only the legislative body can establish the law.

You’re still skeptical of me, even though I’m a former local-government attorney? Okay; go check Segaloff v. City of Newport News, 209 Va. 259 (1968), where Mr. Segaloff did exactly what the landowners did here – relied on an official’s mistaken interpretation of a land-use ordinance and started construction – and lost. I will confess that while reading this opinion, I wondered how the landowner would address the hammer that is Segaloff.

The answer is in the procedural posture of this case. Back in 2007, the owners asked the BZA for a variance. In those dark days, Cochran v. Fairfax BZA, 267 Va. 756 (2004) was the law of the land, and it portended bad outcomes for those seeking variances. Under the applicable statute back then, an applicant had to establish “clearly demonstrable hardship approaching confiscation” just to get a variance. That’s enormously difficult.

The BZA evidently felt the landowners’ pain; essentially snubbing Cochran and the statute, it granted the variance early in 2008. The win was short-lived; the circuit court overturned the variance in June 2009.

You’d figure that would be the end of it, but for whatever reason, nobody did anything after the final judgment. The owners didn’t take the wall down and the City didn’t try to make them. The City’s forbearance may have been affected by a statutory change in the 2009, effectively overturning the harsh Cochran doctrine by removing the “approaching confiscation” language.

Two years later, the City finally took action: It brought criminal charges – criminal charges! – against the owners for failing to remove the wall. The trial court ruled that the prosecution was time-barred. (Misdemeanors have a one-year statute of limitations in Virginia.)

Just when it’s looking like the owners are going to keep their wall, somebody – perhaps a careless motorist – went and damaged it. Ms. Chilton-Belloni, recently widowed, then received what you might consider a nastygram from the new Zoning Administrator, warning her that if she tried to fix the wall, that “will be considered another violation.”

The owner asked the Administrator for another variance, citing the intervening change in the statute. “No dice,” came the response; the Administrator noted that the issue had been fully litigated in a final court judgment. The owner then appealed that decision to the BZA, asking that body to give her the relief that the Administrator had withheld.

In response, according to the pleadings, the Administrator did something surprising: She refused to convene the BZA. Instead, she sued the owner for an injunction to remove the wall. The owner sought a stay of that action to allow the BZA to decide her variance request. The circuit court refused the stay and granted the injunction, simultaneously denying the owner’s separate petition for a writ of mandamus. The court found that the variance issue was res judicata after the earlier litigation, and “engaged in its own determination that a violation occurred.”

I’ll interject a side note here. That surprising refusal to convene the BZA doesn’t play a part in the Supreme Court’s eventual reasoning; as a result of the way in which the justices decide the case, that issue sort of fades into the woodwork. But it’s possible, just possible, that it may have subtly colored the way in which the court looked at the merits of the issues. Assuming it happened – and today’s opinion reports it only as an allegation by the owner; not an established fact – it looks as though the Administrator is trying to cut off available legal relief, in the form of a board hearing. That approach is similar to efforts by a trial judge to prevent appellate review of one of her rulings. The justices don’t like it when judges do that, and if the Administrator did as the owner asserted, the Supreme Court probably wouldn’t look kindly on that, either.

Senior Justice Millette writes today’s opinion for a unanimous court. He begins the analysis by noting that the owner’s separate appeal of the mandamus denial was effectively waived, but agrees with the owner that all of the issues in that appeal are contained in the injunction suit.

On the merits of that appeal, the court sides with the owner, ruling that the trial court erroneously applied res judicata to bar a second look at the variance issue. The justices find that the June 2009 decision was based only on the BZA’s authority to issue a variance, not on the merits of that request. The court thus holds that those merits were not “actually litigated and resolved” in that suit, so that judgment didn’t bar this request.

Justice Millette goes on to address whether one other decision might be res judicata: the BZA’s original adjudication. The question whether administrative (non-judicial) decisions can become res judicata is often a close call. After all, if there’s no judge involved, deciding whether something has been “adjudicated” isn’t always obvious.

But here, the justices have an uncomfortable surprise for this Administrator and her colleagues across the state. Today’s opinion quotes with approval this passage from a Rhode Island decision:

[A] strict rule of res adjudicata in zoning matters could have unfortunate consequences such as denying a landowner once refused relief the right to a reconsideration of an application based upon intervening circumstances resulting in a deprivation of all beneficial use of his property. Such an undesirable result could have serious constitutional implications and would do violence to the expressed legislative will authorizing zoning boards to vary the terms of zoning ordinances in hardship cases.

In a separate passage, Justice Millette outlines the new contours of res judicata in the context of Virginia land-use law:

Use of a property should not be forever governed and restricted by the date at which an owner first seeks permission to alter the property. It should be allowed to evolve along with the zoning standards of the locality. There are ample reasons to permit property owners and zoning appeals boards to revisit a zoning question when the relevant ordinances or statutes have changed, and utterly unjust to bar a landowner from potential benefits to his or her property merely because he or she, or a previous owner, had engaged in a prior appeal of the matter under different law.

I bet you didn’t see that coming. At least as of today, the Supreme Court has softened the bar of res judicata in the land-use context.